Plaintiff 1 and 15 others (Attorney Dong Dong-hwan, Counsel for the plaintiff-appellant)

East Transportation Co., Ltd. (Law Firm New Daily, Attorneys Lee Han-hun et al., Counsel for the defendant-appellant)

October 2, 2013

1. The defendant shall pay to the plaintiff 14 79,480 won with 5% interest per annum from May 1, 2013 to November 1, 2013, and 20% interest per annum from the next day to the day of complete payment.

2. The remainder of the plaintiffs 14 and the remaining plaintiffs' claims are dismissed, respectively.

3. The costs of lawsuit are assessed against the plaintiffs.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs 20% interest per annum with respect to each of the above amounts and 20% interest per annum from May 1, 2013 to the day of full payment.

1. Facts of recognition;

A. On June 30, 201, the Daejeon Metropolitan City Local Bus Trade Union concluded a wage agreement with the Daejeon Metropolitan City Bus Transport Business Association that represented the Defendant Company (hereinafter “instant wage agreement”) with the following terms (hereinafter “instant wage agreement”). On September 2012, the said wage agreement was renewed.

(1) Basic working hours: 8 hours per day, and overtime working hours: One hour per day, and nine hours per day when overtime work after full attendance (Article 1(2)).

(2) The basic working hours shall be 40 hours a week (Article 2(2). The number of monthly working days shall be 22 full-time days (20 days a month) (Article 2(4)).

(3) Where 50/100 is additionally paid by applying ordinary wages under Article 5 of the wage agreement, and workers at midnight continue to work full-time to work until P.M., the number of working days shall be calculated as two days, and where the number of working days per month exceeds 22 days, allowances shall be paid in accordance with the wage calculation table (Article 6).

4. This Agreement shall apply from February 1, 201 to January 31, 2012 (Article 18).

B. The wage calculation table was prepared in accordance with the wage agreement of this case. Accordingly, the Defendant Company paid wages to the Plaintiffs, who are its employees. In the case of two months under the above calculation table, the number of working days was not less than 25 days, and in the case of another month, the number of working days was recognized as working on holidays and paid holiday allowances.

C. Meanwhile, in the case of Plaintiff 14 (Grade 9,935 in salary grade 2, 2012), the company worked on February 25, 2012, and May 27, 2012. The Defendant Company paid Plaintiff 14 KRW 2,518,523 as the base salary in February 2012 and KRW 1,669,080 as the extended allowances, and KRW 849,443 as the extended allowances, based on the wage calculation schedule (the total amount of KRW 2,424,140 as the base salary in salary grade 24,534,540 as the number of working days, KRW 2,424,140 as the total of KRW 1,828,040 as the base salary in May 2012, KRW 2879,2489 as the total of KRW 1,67,284,286,57,286,586.

D. Article 55 (Holiday) of the Labor Standards Act provides that “an employer shall grant workers at least one paid holiday per week average.” Article 59 (Special Cases concerning Work Hours and Recessing Hours) provides that “If an employer has made a written agreement with the labor representative with respect to a business falling under any of the following subparagraphs, the employer may allow workers to work in excess of 12 hours per week under Article 53(1) or change the recess hours under Article 54.” 1. Transportation business, goods sales and storage business, finance and insurance business.”

[Grounds for Recognition: Evidence No. 1, Evidence No. 2-1 to 12, Evidence No. 3, the purport of the whole pleadings]

2. The assertion and judgment

A. The parties' arguments

The plaintiffs asserted that: (a) the basic working hours are 40 hours a week; (b) the number of monthly working hours is 22 days (20 days in February); and (c) the working hours exceeding 176 hours per month (8 hours x 22 days) constitute overtime and holiday work; (d) despite that the defendant did not pay holiday allowances for overtime work hours exceeding 22 days from February 2012 to January 2013; (b) the defendant sought payment of unpaid holiday work allowances of KRW 18,234,440 in total; and (c) the plaintiff 14 had not paid overtime allowances of KRW 39,740 in total for overtime work hours on February 25, 2012; and (d) the non-paid overtime allowances of KRW 39,740 in total for overtime work hours on May 27, 2012.

On the other hand, the Defendant agreed between 27 and 27 days on the wage calculation table (25 days in case of February) as a holiday work, and ② even if there are unpaid holidays and overtime work allowances, the Defendant paid 50/100 of night work allowances to the Plaintiffs, but paid 150/100 as an error in the wage calculation table, and accordingly, claimed the Plaintiffs’ above holidays, overtime work allowance payment claim, or set-off or deduction.

B. Determination on the claim for payment of holiday work allowances

The following circumstances that can be acknowledged by the evidence as above, namely, the instant wage agreement provides that “The number of days worked per week shall be 22 full hours (20 days per week).” However, in light of the fact that the instant wage agreement merely provides the basis for deeming the number of days worked per week as overtime work, and that it does not immediately mean that all overtime work should be agreed on holiday work. ② The wage calculation table under the instant wage agreement provides that the number of working days shall be 25 days in case of two months, and that the number of working days shall be more than 27 days in case of other months, and that the Act provides that a holiday work allowance shall be paid only when the number of working days is more than 27 days, and ③ The Labor Standards Act provides that “If an employee grants more than one paid holiday per week to an employee, it is difficult to view that the method for calculating holiday allowance under the above wage calculation schedule violates the Labor Standards Act, the Plaintiffs’ claim for holiday work allowance shall not be accepted on the premise that the Plaintiffs’ claim for holiday work allowance exceeds 20 days per week.

C. Determination on the claim for payment of overtime allowance

According to the above, Plaintiff 14 worked on February 2012 and May 27, 2012. Defendant Company paid Plaintiff 14 KRW 1,669,080 as basic pay in February 2012, and KRW 849,443 as extended allowances, and paid KRW 1,828,040 as basic pay in May 2012, KRW 879,248 as extended allowances, and KRW 249,248 as 24th day of February, 201, and KRW 94,380 as overtime allowances calculated on February 24, 201, KRW 19,69,383 as additional paid on May 26, 201, KRW 19, KRW 134,384, KRW 3939,945, KRW 2939, KRW 47,979, KRW 194, KRW 395,000 per annum.

As to this, the defendant asserted that the plaintiff 14 would make a set-off or deduction from the right to claim the payment of overtime allowance and the corresponding amount as the claim for the refund of the night work allowance paid in May 2012 (i.e., 9,935 won x 25 days) paid in February 2012 to the plaintiff 14 (i.e., 9,935 won x 25 days), and 268,245 won for night work allowance paid in May 2012 (i.e., 9,935 won x 27 days), but this is paid in accordance with the wage calculation schedule in accordance with the wage agreement in this case, it cannot be deemed as unjust enrichment by the plaintiff 14, and therefore, the defendant'

3. Conclusion

Therefore, the plaintiff 14's claim is accepted within the scope of the above recognition, and the remaining claims of the plaintiff 14 and the remaining claims of the plaintiffs are dismissed as they are without merit.

[Attachment]

Judges Kim Jong-soo

Note 1) = 2,518,523 - Total amount paid in February 2012 - total amount paid in 2,424,140 = total amount paid in May 2012 - total amount paid in 2,707,288 won - total amount paid in 2,612,905 won for working on 26 days.